The April issue of Boston College Law Review is now available. The issue features three articles by outside authors as well as four student notes. Summaries of the eight pieces can be found below. The full texts are also available on the BCLR website.
Hot Bench: A Theory of Appellate Adjudication by Professor Terry Skolnik
Supreme Court justices are talking more than ever during oral argument. In light of this new era, Professor Skolnik explores the virtues and vices of a “hot bench,” in which appellate judges engage in vibrant verbal exchanges with the parties during oral hearings. The Article advances a theory about the connection between a hot bench and appellate adjudication, providing a new account of how active hearings can promote certain functionalist and democratic virtues of oral argument that cold benches and written decisions cannot. Professor Skolnik warns, however, that the disadvantages of the new oral argument may outweigh its advantages; more active hearings present the risk that appellate judges may conduct themselves in a manner that is inconsistent with their role in a constitutional democracy and contrary to the purpose of oral argument. The Article concludes by demonstrating how a hot bench could threaten judges’ perceived impartiality or the advocates’ participation during the hearing, and by affirming the importance of appellate judges’ passive virtues.
Criminalizing Immigrant Entrepreneurs (and Their Lawyers) by Professor Eric Franklin Amarante
Professor Amarante examines the Immigration Reform and Control Act of 1986 (IRCA), which prohibits anyone from “encouraging” an undocumented person to reside in the United States. He explores the various ways in which courts have construed the statute’s prohibition, including everything from employing undocumented housekeepers to procuring falsified documents for citizenship applications, and possibly even legal advice. The Article contrasts the Ninth Circuit’s decision in United States v. Sineneng-Smith—which found IRCA’s encouragement prohibition unconstitutionally overbroad under the First Amendment—with decisions from other circuits upholding the prohibition. Ultimately, Professor Amarante argues in favor of the Ninth Circuit’s approach because it not only respects Congress’s legislative authority, but it also represents sound policy by supporting undocumented entrepreneurship.
Hyperpartisan Gerrymandering by Professor Michael S. Kang
In his Article, Professor Kang analyzes the history of hyperpartisan gerrymandering in the United States and the inadequacy of election law to regulate it. To modern observers of American politics, our current hyperpartisan era appears historically extreme, even bizarrely partisan. Most of American history, however, experienced intense partisanship and legislative districting similar to today. The exception to this trend was the Cold War era—the era during which courts inaugurated election law and began overseeing redistricting. Professor Kang argues that the development of redistricting law, and indeed most of election law, therefore, occurred during the unusual circumstance of historically low partisanship when partisan complications largely receded from judicial attention. He argues that as a result, our inherited law of redistricting developed by courts during the Cold War era is fundamentally mismatched to today’s hyperpartisanship and hyperpartisan gerrymandering.
In her Note, Emma Coffey explores the United Kingdom’s (UK) options for implementing UK choice of law rules, currently embodied in EU Regulation 593/2008 (Rome I), post-Brexit. Thus far, the UK has chosen to transplant the language of Rome I into UK domestic law but has reserved the right for Parliament to make changes to the retained rules. Acknowledging Brexit’s dual goals of reasserting parliamentary sovereignty and maintaining certainty, Emma utilizes Article 3 and Article 9 of Rome I as case studies to explore the different routes the UK could take: including retaining the current language, rewriting the entire regulation, basing the regulation off of another countries choice of law rules, or returning to a prior code. Ultimately, Emma argues that the UK should invite comments on the existing Rome I rules, and the UK should retain the existing language unless there is evidence that a provision is harming UK businesses and/or citizens.
Coleman Gay’s Note explores a supposed solution to America’s mass shooting affliction: so-called “red flag” laws. Red flag laws have become all the rage in statehouses across the country because they give law enforcement a means to quickly remove firearms from potentially dangerous individuals—regardless of the individual’s criminal record or mental health history. Perhaps unsurprisingly, the laws have proved to be a magnet for constitutional challenges. Coleman first provides readers with a primer on the laws by looking at the statutory regimes, legislative history, and judicial treatment of four states’ red flag laws. He then considers the laws’ interplay with the Second Amendment. In so doing, he discusses the federal courts’ current Second Amendment jurisprudence, and examines how courts might apply that legal framework to red flag laws. He argues that courts considering a Second Amendment challenge to red flag laws should find that the law regulates conduct and individuals protected by the Second Amendment, and then evaluate the law under a test of intermediate scrutiny.
From Securities to Cybersecurity: The SEC Zeroes In on Cybersecurity by Rebecca Rabinowitz
Rebecca Rabinowitz’s Note examines the SEC’s regulation of cybersecurity, in particular through the mandatory disclosure regime established by the federal securities laws. Although SEC guidance has confirmed that public companies have an obligation to disclose material cybersecurity risks and incidents, the SEC, Rebecca asserts, has not meaningfully expounded upon what makes an incident “material” and when disclosure is “timely.” This lack of clarification, coupled with the SEC’s own cybersecurity difficulties, prevents the SEC from achieving meaningful regulation. Rebecca argues that, in order to help public companies more effectively address cybersecurity concerns, the SEC must strengthen its own cybersecurity and provide further guidance on what cybersecurity information must be disclosed, and when.
Kourosh Azin’s Note investigates whether loot boxes in video games should be classified as a form of gambling. Loot boxes are a type of microtransaction, or purchase within a game, where users can trade real money for a chance to acquire an assortment of in-game items. While American courts have been hesitant to classify loot boxes as a “gambling device,” foreign nations have already begun prosecuting game developers for incorporating loot boxes in games targeted towards minors. Such consumer protection concerns may be warranted as scientific studies have shown a correlation between excessive gaming and an increased predilection for problem gambling. Kourosh argues that loot boxes should be regulated as a form of gambling due to their functional similarities to traditional gambling devices and potential long-term negative effects on children.